Full Senate must vote on judicial nominees, judge rules

Republican State Senator Anthony Palumbo (right) won a case brought against State Senator Brad Hoylman-Sigal (left), State Senate Majority Leader Andrea Stewart-Cousins and the State Senate after chief judge nominee Hector LaSalle was rejected by the Senate’s Judiciary Committee last month. AP file photo by Hans Pennink

By Jacob Kaye

The State Senate Judiciary Committee's initial rejection of chief judge nominee Hector LaSalle was unconstitutional and all future Court of Appeals nominees must receive a full Senate floor vote, a Suffolk County judge ruled on Tuesday.

Suffolk County Supreme Court Justice Thomas Whalen ruled in favor of Republican State Senator Anthony Palumbo this week in a suit brought by the lawmaker after the Senate’s Judiciary Committee attempted to end LaSalle’s nomination during a 10-9 committee vote last month.

Though Governor Kathy Hochul’s chief judge nominee was eventually voted on – and rejected – by the full State Senate last week, Whalen denied arguments made by attorneys representing the State Senate, Senate Democratic Majority Leader Andrea Stewart-Cousins and the 10 Democratic members of the committee who voted against advancing LaSalle that the case had been made moot by full floor vote on Wednesday.

In doing so, he ordered that all future Court of Appeals nominees sent to the legislature by the governor must be given consideration by the entire State Senate.

“This Court must conclude that the practice adopted by the defendants is not allowed under the Constitution,” Whalen’s decision reads. “The judiciary committee does not have the constitutional duty for ‘advice and consent.’”

“The constitution clearly states that this power is reserved to the Senate,” the decision continues. “The judiciary committee can aid the full Senate by performing an investigative function, but it cannot substitute for the power reserved to the Senate by the constitution.”

Whelan’s decision, if it withstands any potential legal challenge, will apply to the governor’s next chief judge nomination – the process for which began on Friday.

A spokesperson for the Senate Democratic caucus said that they are “reviewing the decision” and did not comment on whether or not they plan to appeal.

Palumbo brought the case shortly after the Senate Judiciary Committee, led by Senator Brad Hoylman-Sigal, voted to reject LaSalle and end his nomination process there on Jan. 18. Hochul, who was not a party to the suit, floated the idea of taking legal action against the Senate in the days following the committee’s rejection of her nominee.

The governor argued that the state’s constitution, which outlines the “advice and consent” role of the Senate in the judicial nomination process, mandates that the full Senate vote on a nominee. The same argument was made by Palumbo.

The Senate Democrats argued that the constitution does not explicitly say one way or another whether or not a full Senate vote is required but that it does explicitly state the Senate has the right to make its own rules and operations.

James Catterson, an attorney representing Palumbo, called the Democrats’ reading of the constitution “unavailing.

“[I]f the Senate could avoid its constitutional duty to confirm or reject appointments to the Court of Appeals by simply referring a nominee to committee pursuant to Senate Rules, the separation of powers enshrined in the Constitution would be imperiled as the Court of Appeals could be indefinitely deprived of its full membership,” Catterson said in a recent filing in the case.

Whelan did not wait to make his opinion on the matter known before issuing a decision.

“To me, [the constitution] is a power-giving document that enumerates power to certain individuals…and this doesn’t say the Senate or committee there off,” Whelan said during the court appearance on Friday. “To me, there’s just one Senate.”

He expanded on his opinion in his decision.

“Defendants' interpretation is simply unreasonable,” Whelan wrote. “The literal language of the constitutional provision is controlling. The People never voted for such a procedural shortcut to the 129-year-otd ‘advice and consent’ provision embedded in the Constitution.”

During the court appearance on Friday, Andrew Celli, the attorney representing the Senate, attempted to argue that because the full Senate had voted on LaSalle, the lawsuit – which originally called for the judge to order the Senate to vote on the nominee – had become moot.

He also urged Whalen to dismiss the case without issuing an opinion, arguing that the LaSalle nomination was an isolated event and unlikely to happen again.

“We have a unique political environment for each nominee,” Celli said on Friday. “The next [nominee] is going to have his or her own political moment…and we’ll have to see what happens.”

“All of this is to say that this is not likely to recur,” he added.

In response to Celli’s argument, Whelan said the case could be ended if Celli could get his clients to agree to bring every future nomination it receives to the floor of the Senate.

“Of course not,” Celli said.

In his decision, Whalen said that while LaSalle’s nomination may be settled “the issues are also likely to recur.”

“The governor's new appointee will be before the Senate within the next 120 days,” Whelan wrote. “Since the rights of the parties will be affected by this decision, the matter is not moot.”

Last week, the Court of Appeals officially declared a vacancy on its bench. That prompted the Commission on Judicial Nomination to issue a call for chief judge applicants on Friday.

The application period will be open through March 7 – those who applied to serve in the top judicial role following former Chief Judge Janet DiFiore’s retirement in August, will also be reconsidered and do not need to reapply.

The commission will then select seven candidates and recommend those candidates to the governor.

Hochul will then select one of those candidates and nominate them for the position. The full Senate will then vote to confirm or reject her nominee.

LaSalle was the first chief judge nominee to be rejected by the Senate.

Prior to nominating LaSalle, a number of progressive groups urged Hochul not to nominate the current presiding justice in the Appellate Division, Second Department.

That opposition only grew after Hochul ultimately went with LaSalle. In the weeks following the nomination, over a dozen State Senators publicly stated that they would vote “no” on LaSalle’s nomination should it make it to the floor.

Though the Judiciary Committee originally voted to end LaSalle’s nomination in January, very little movement towards the appointment of the state’s next chief judge was seen in the weeks that followed.

The Court of Appeals did not formally issue a vacancy and Hochul repeatedly said that she believed LaSalle’s nomination was still alive.

That changed after Palumbo filed his suit. Two days before the Friday appearance in the case, the Senate held a full vote on LaSalle, rejecting him in a decisive 39-20 vote. Not a single Democrat voted in favor of confirming LaSalle.